Enforcements visits and Home Office Raids: A Manual On What To Expect When Encountered By The Home Office

Transcription

1 1 Enforcements visits and Home Office Raids: A Manual On What To Expect When Encountered By The Home Office Contents INTRODUCTION... 7 ENFORCEMENT VISITS... 8 Immigration and Asylum Act 1999: implementation of Part VII... 8 Pre-visit procedures... 9 Visits to households in order to arrest Visits to households in order to conduct marriage, bail or reporting compliance checks Conduct of non-scheme marriage investigations Unannounced visits to investigate marriages Actions during a marriage visit Suspect marriages involving European Economic Area (EEA) nationals Visits to places of employment Visits to care home or care providers Visits to prisons Visits to register offices Religious premises operations Visits to suspected vice premises Visits accompanied by police officers Persons encountered during a visit other than the named offender Circumstances in which officers may give pursuit Immigration Enforcement operations in public areas, crime reduction operations, ANPR and Home Office led street operations Service of Home Office Decision in person upon reporting OPERATIONAL ARREST ACTIVITIES ( HOME OFFICE RAIDS) What is an operational arrest activity? What is not an operational arrest activity? How Home Office staff is recognisable The powers used Drive-by reconnaissance Entry by informed consent Forced entry Reactive enforcement visits (hot pursuit) Conducting an arrest... 26

2 2 De-arresting at the scene Dealing with other occupants and third party visitors and customers Complaints of illness Personal possessions Prescription medicines Seizure of cash Transporting the detainee to police or Home Office custody Encountering other criminality Contemporaneous notes Pocket note books (PNBs) Duty of care Booking-in procedure Detainees' property Cell procedures NON COMPLIANCE AND ABSCONDER PROCESSES Port Absconder In-Country Absconder Disengaged Migrant Reasonable explanation Non-compliance Breach(es) Failure to report Compliance visit Removable cases criteria Compliance and arrest visits Compliance visit Arrest Visit Failure to report as a condition of bail Legislative requirements Absconder referral action National absconder tracing team (NATT) Criminal casework trace and locate team (CCT and L) Port absconders PNC circulations and tracing Responsibility for action to be taken when a port absconder is encountered Case ownership... 39

3 3 Police encountered absconders Police encountered absconder and non-compliance action Voluntary contact by absconder or non-compliant person SEARCH AND SEIZURE Retention of documents Searching arrested persons: paragraph 25B of schedule Search of people in a police station, arrested under paragraph 25C, schedule 2 to the Immigration Act Searches of premises using administrative powers Entry and search of premises following arrest: paragraph 25A of schedule 2 to the Immigration Act Entry and search of premises with warrant following arrest: paragraph 25A(6A) of schedule Searching for relevant documents Searching premises in connection with removal: paragraph 15A of schedule Searching premises in connection with imposition of a civil penalty: section 47 Immigration Act Searching premises for employment records: section 28FA(3) Immigration Act Seizure and retention: sections 48 and 49 Immigration Act Carrying out a premises search: conducting the search Search for evidence of a relevant offence, section 28D of the Immigration Act Search of premises, section 28Eof the Immigration Act Entry and search for evidence of nationality or identity under sections 44 to 45 of the UK Borders Act Authority for section 44 to 45 searches Section 46 UK Borders Act 2007: seizing and retention of nationality documents Search of persons arrested under section 28G of the Immigration Act 1971: not in a police station Search of persons in police custody under section 28H of the Immigration Act Retention of seized material under part 3 of the Immigration Act ARREST AND RESTRAINT Duty of care: arrested or detained person Establishing grounds to arrest: general considerations Information to be given on administrative arrest Use of force and restraint: enforcement Use of handcuffs Prone restraint (lying down) search Control and restraint of families and children... 60

4 4 Use of force on pregnant women Using force to secure entry to premises: method of entry (MoE) Using no-knock forced entry Carriage of detainees Detainee property and medication Criminal arrests PACE detention following criminal arrest Criminal arrest: property Criminal arrest: interpreters INTERVIEWS Administrative enquiries: Formal criminal enquiries: Exploratory questioning Cooperation with exploratory questioning Initial administrative interviews Further examination Interview Further examination interview record Administrative enforcement interviews: marriage and civil partnership Legal representative presence at Administrative Interviews ENCOUNTERING ADULTS AT RISK IN IMMIGRATION DETENTION Underpinning presumption that a person will not be detained An Adult at Risk Indicators of risk Pregnant women Serious physical disability Serious health conditions or illnesses Age Mental health conditions Transsexual and intersex people Potential victims of trafficking / modern slavery Other conditions Assessing risk: weighing the evidence and evidence levels Assessment of immigration factors Length of time in detention Public protection issues Compliance issues... 80

5 5 Balancing risk factors against immigration control factors Evidence assessment Border cases: adults at risk Risk factors emerging after the point of detention Rule 35 of the Detention Centre Rules Special illnesses and conditions GATHERING OF INTELLIGENCE BY THE HOME OFFICE The role of the Interventions and Sanctions Directorate Referring cases for sanctions to be applied Home Office powers to share immigration data The supply of information for immigration purposes Duty to supply information Requiring a nationality document HM Revenue and Customs (HMRC) General Register Office (GRO) sham marriage Department of Health, NHS trusts and GP surgeries Local authorities Private sector coercive powers Financial Institutions and Employers CONCLUSION... 94

6 6 Enforcements visits and Home Office Raids: A Manual On What To Expect When Encountered By The Home Office Copyright 2016 by Alice Muzira. All rights reserved. No part of this Manual may be reproduced, distributed, or transmitted in any form or by any means, including photocopying, recording, or other electronic or mechanical methods, without the prior written permission of the author. Disclaimer and Exclusion of Liability. You must not rely on the information in this Manual as an alternative to legal advice from your Solicitor or other professional legal services provider. If you have any specific questions about any legal matter, you must consult your solicitor or other professional legal services provider. You should never delay seeking legal advice, disregard legal advice, or commence or discontinue any legal action because of information in this Manual. Great care has been taken in the preparation of this Manual to ensure accuracy, however the author cannot accept responsibility for any errors or omissions. This Manual has been compiled and prepared having regard to UK Government and Home Office websites and resources, therefore legislation and Home Office policy guidance referred to within this Manual is liable to change or amendment over time.

7 7 INTRODUCTION A person may be encountered by immigration officers in several ways, for example, by way of enforcement visits, operational arrest activity(immigration raids) or as a result of failing to comply with a condition of release when granted temporary admission, temporary release, bail or released on a restriction order. This Manual will manoeuvre through the processes that such persons may be subjected to upon being encountered by immigration enforcement officers. The Manual will therefore seek to consider the following: The difference between enforcements visits and operational arrest activities; The difference between non-arrest trained officers and arrest trained officers; Immigration enforcement officer s powers regarding searching premises and people; When and how immigration enforcement officers may make an arrest using administrative immigration or criminal powers; Search and seizure powers of immigration officers; Arrest and restraint powers of immigration officers; Non compliance and absconder action processes; Enforcement interviews by immigration officers; Considerations taken into account by immigration officers when adults at risk are encountered How the Home Office gather intelligence What to do where a person is encountered and detained

8 8 ENFORCEMENT VISITS Immigration and Asylum Act 1999: implementation of Part VII Part VII of the Immigration and Asylum Act 1999 amended the Immigration Act 1971 to provide extended powers to immigration officers allowing them, in certain circumstances, to search persons and premises, to enter premises for the purposes of searching and for arresting persons and to seize and retain relevant material. The provision of these powers to immigration is necessary to allow the Home Office to make use of existing powers of arrest and to operate, in appropriate circumstances, without accompanying police when conducting operational visits. Arrest team officers operate nationally. Home Office Staff designated to use the powers are provided with separate operational instructions at Chapter 61, Arrest Teams Operational Procedures. All other officers are required to operate under existing guidance as set out in Chapter 31, Enforcement visits. For the sake of clarity non-designated Immigration Officers must not: carry out arrests execute warrants conduct searches of persons or property unless by consent carry or use restraints transport offenders in official vehicles (non-designated Immigration officer s may drive official vehicles (but not escort detained persons) subject to a designated Immigration officers being present and vehicle insurance) A warrant must only be served by a police officer or designated arrest trained officer of immigration officer rank or above. This person maintains responsibility for the execution of the search and the power used under the warrant. The warrant can be obtained by any warranted officer, that is an assistant immigration officer or above (or a police officer where they are named in the Act). It does not have to be an arrest trained officer who obtains the warrant, but the warrant must specify what other officers will be present when the warrant is executed. A non-arrest trained officer may assist on a visit where a warrant has been obtained so long as the warrant specifies this as mentioned above. They may

9 9 not execute the warrant. They may enter premises in order to question any persons on the premises to identify them and to ascertain their immigration status after the premises has been secured. They cannot enter and search the premises to locate the person named on the warrant, search a person after an arrest or search any areas of a premises for evidence relating to the offence. All such searches must be conducted by an arrest trained officer or a police officer under the appropriate power. The police may expect all immigration officers to use their powers of arrest, entry, search and seizure when on joint operational visits. In such circumstances it should be explained by immigration officers that these powers are only available to a limited number of officers, that is those who are arrest trained. On entering premises, the officer in charge or other officer executing the warrant must identify themselves to the person allowing entry, show their warrant card. Other officers must identify themselves if requested to do so. For all other officers present, it remains best practice to explain their role and purpose at the outset of any interview. Where a warrant has been issued to secure entry and immigration officer has reasonable grounds to believe that recording or disclosing their name may put them in danger, they may use their warrant number and Immigration Compliance and Enforcement (ICE) team name when endorsing the warrant. Pre-visit procedures When a decision has been made to conduct an enforcement visit, officers must ensure that they have exhausted all avenues for resolving a person's immigration status in the UK. A final status check must be conducted within 24 hours of the intended visit. In addition, officers should, as far as is reasonably practicable, eliminate any other person from their enquiries that may be present at the address that is not of an immigration interest. Enquiries should be undertaken as close as possible to the timing of the visit, preferably within seven days. Visits are split into three categories. These are: enforcement visit a visit where the apprehension of an immigration offender is intended. non-enforcement visit a visit where there are no plans to apprehend (arrest) an offender.

10 10 police call-out a reactive visit where officers attend an office (police station) to deal with a suspect who is (potentially) already under arrest. Immigration Officers should not visit private addresses either very late at night or very early in the morning. There is no definition of normal / reasonable hour. Each case has to be decided on its own merits and it is for the officer to consider if the visit would be frustrated if carried out at a different time. Visits to households in order to arrest All visits to residential addresses to arrest potential immigration offenders should be conducted with a police presence. Visits to households in order to conduct marriage, bail or reporting compliance checks Marriage visits are conducted to review the living arrangements of a couple making a settlement application. Marriage investigation visits are not usually expected to result in arrest but must still be planned and assessed for risk as for any other operational visit. Although the nature of the visit may not present an obvious likelihood of an arrest being made the possibility must be allowed that third parties may be present who may have cause to wish to evade contact with the authorities or who may be hostile in the face of an investigation taking place. Officers may therefore go prepared and equipped as they would for a planned arrest visit. Compliance visits are conducted to check on the residential arrangements of offenders subject to temporary admission, a restriction order or bail. Compliance visits are not arrest activity as the purpose is to confirm whether the person still lives at the address and, if the subject is encountered, to advise them of their liability to comply with restrictions/bail and the implications if they continue to refuse to comply. If an officer is an arrest trained officer, then baton and handcuffs should not be carried on these visits as no arrest activity is planned. Marriage and compliance visits to residential premises can be conducted by a minimum of two Immigration Enforcement officers (arrest or non arrest trained). If immigration officers are invited into premises to discuss matters further a clear signed record of consent being granted to allow those officers to enter the premises should be made in the officers pocket notebooks as no statutory power of entry exists for this type of activity.

11 11 Conduct of non-scheme marriage investigations Home Office Policy Guidance, Operational enforcement visits, Version 1.0, 26 September 2016 tells Immigration Enforcement officers how to investigate a sham or forced marriage or civil partnership. For guidance on conducting marriage investigations under the marriage referral scheme, the following is relevant: o Marriage investigations, Version 1 published on 25 July 2016 o Enforcement interviews: Administrative enforcement interviews: marriage and civil partnership( mentioned below) Unannounced visits to investigate marriages Unannounced visits to test the genuineness of a relationship must not be made where the investigation has been referred as part of the Marriage and civil partnership referral and investigation scheme. This does not preclude necessary visits to investigate suspected immigration offences. In other circumstances, where information suggests that a sham or forced marriage has been planned or has already been contracted it may be appropriate to make enquiries at the residential address in order to assess whether an offence or breach has been committed. If no one is at the premises when the visit takes place, officers must consider speaking to neighbours about who lives at the residential address. At least 2 attempts must be made to visit the couple at the premises subject to operational resources. Actions during a marriage visit Immigration Officers must record interviews in their notebook or on form ISCP4 and ISCP4 continuation as this provides good evidence for an appeal bundle or curtailment decision and immigration judges prefer verbatim interview records. Immigration Officers must also complete an IS126e outlining their conclusions as a cover to the interview record. If no interview takes place, the immigration officer must record the outcome and any observations from their visit in their pocket notebook. The record of events must be detailed and care must be taken to comply

12 12 with note taking standards where the notes may provide the basis for a witness statement at a later date. Criminal and Financial Investigations (CFI) will advise when and if a witness statement is required. Suspect marriages involving European Economic Area (EEA) nationals In this regards relevant Home Office Policy Guidance is Operational enforcement visits, Version 1.0, 26 September Immigration Officers may encounter persons who are not themselves EEA nationals but claim to be the spouse or civil partner of one and who therefore claim to be entitled to live and work in the UK. Direct family members have an automatic right to reside under European Union (EU) law and do not have to apply to the Home Office for a residence card. A direct family member is a spouse, a civil partner, a child (including step child or adopted child) who is under 21 or otherwise dependent, or a dependent parent or grandparent. If the EEA national is a student, the requirements are slightly different. Other family members (including unmarried partners) do not have automatic rights unless they have been issued with an EEA family permit, a registration certificate or a residence card. Where an Immigration Officer has reasonable grounds to suspect that a claimed marriage or civil partnership is not genuine, they must investigate further. Reasonable grounds could include the context in which the officer encountered the person, their behaviour or their responses when interviewed. If an officer has reasonable grounds for suspecting that an immigration criminal offence may have been committed, they must seek advice of Criminal and Financial Investigations and may, if appropriate, conduct a criminal arrest and detain them in accordance with the Police and Criminal Evidence Act 1984 or equivalent processes in Scotland and Northern Ireland pending further investigation (including a visit to their home address, if appropriate). If the evidence shows that they are not a genuine spouse or civil partner of an EEA national, and have not previously been issued a residence card, then they have no EU rights and are liable to administrative arrest, curtailment and/or removal in the same way as any other non-eea national without leave. Examples of grounds for suspicion: o If during an illegal working operation an immigration officer encounters a non-eea national who claims to be a family member but has not provided this evidence (or if an officer suspects evidence

13 13 has been forged) this would provide reasonable grounds for investigating further. o If an employer has conducted right to work checks, it would be usual for a non-eea family member of an EEA national to have provided their employer with either a valid residence card, (or a derivative residence card, or permanent residence card) or a certificate of application, although possession of these documents is not a requirement to exercise the right to work. Where someone was employed with a certificate of application, but this has since lapsed, the officer must liaise with colleagues in European casework to confirm that the certificate was validly issued and that the subject still has a right to work. On a visit to domestic premises an immigration officer may encounter a person who claims to be the family member of an EEA national and has not obtained a residence card. Their living arrangements may support or cast doubt on their claim. Where there are reasonable grounds to suspect the claim is false, the officer must request proof of the relationship (for example, a genuine passport endorsed with an EEA family permit issued by a UK Visas and Immigration visa section and/or a genuine marriage certificate). If there is no evidence that their partner or family member is living with them, the officer must ask them to explain where they are. Where someone is stopped in the course of a street operation because their behaviour is suspicious, the officer must ask relevant questions about their claim to have EU law rights. If the officer has reasonable grounds for suspecting that an immigration offence or breach has been committed, for example, if their responses suggest that their claim to be an EEA family member is fictitious, they may administratively arrest them and interview them further. Visits to places of employment Before visiting places of work, immigration officers are required to try to establish the names of offenders and undertake pre-visit checks. They should try to enlist the co-operation of employers in identifying employees who may be immigration offenders, unless there is reason to believe that this would undermine the effectiveness of the operation. If unsuccessful, immigration officers are required to only undertake a visit where there is apparently reliable information that immigration offenders will be found.

14 14 They should take particular account of whether there is a history of the premises being used by offenders. Also relevant for consideration is Home Office Policy Guidance, Illegal working operations Version v1.0, published on 12 July Visits to care home or care providers When considering operational activity against care providers or agencies, continuity of care for the people using the service is the primary concern. Before conducting any operational activity, the Officer in Charge must contact the care organisation that is responsible for the location concerned. The Officer in charge must make the relevant care organisation aware of care providers, or agencies providing staff to care providers, who are suspected of being in breach of illegal working legislation. Where care provision and illegal working abuses are identified, officers must agree to undertake joint enforcement action and advise local Ambulance Service, Police and Local Authorities of the planned activity. A joint decision will be reached on the lead roles for different aspects of any planned operational activity. Visits to prisons Immigration Officers may be required to attend a prison for an interview with an offender, to conduct an asylum interview or to serve enforcement notices, for example a deportation order. A prisoner being interviewed by an immigration officer in respect of an immigration offence is entitled to legal representation in the same circumstances as he would be if being interviewed at a police station. Legal representation must, however, be arranged and financed where necessary by the prisoner. He should be advised of any interview in advance allowing plenty of time for him to contact his representative. Whilst there is no legal entitlement to representation in, for example, asylum interviews, it is prudent to allow a representative to be present and an interview should not normally proceed without a legal adviser if the detainee requires one. Visits to register offices It is unlikely that visits to register offices to investigate marriages will be necessary since the introduction of the Immigration Act 2014 requiring registry officials to refer suspicious proposed marriages and civil partnerships for investigation where a spouse is a foreign national.

15 15 See: Marriages and Civil Partnerships (Conduct of Investigations, etc) Regulations 2015) It may however be necessary to visit either a designated or non-designated register office in order to apprehend a suspected offender where no reliable home address is known, or where the likelihood of encountering the person at the home address is low. Before conducting a visit to a register office all pre-visit checks must be carried out and arrangements to conduct the visit made with the superintendent registrar. The agreement of the superintendent registrar, or their deputy in their absence, to enter the premises must also be obtained in advance. Officers are aware that parties who have been arrested and charged with immigration offence or breaches, regardless of the venue, may still be able to arrange for their marriage or civil partnership to take place on another day. Furthermore, officers have no power to prevent a marriage taking place where the couple, or one of the parties to the marriage, are not arrested. Only a registrar may prevent a marriage on the grounds that there is a legal impediment to the marriage. However, proceeding with a marriage or civil partnership will not result in any immigration advantage where the evidence proves that it is a sham. Religious premises operations Scheduling a religious premises operation should be the last resort. This sensitive type of operation will involve large numbers of police officers, immigration officers and in some instances offenders. Consequently this will generate a substantial amount of local and national media interest. Religious premises operations must be authorised at deputy director level and the minister must be informed. Such sensitive cases may require the Home Secretary to be informed. The set up of this kind of operation may take a considerable amount of time. No indication should be given to the police that the intended operation is to go ahead until approval in principle has been obtained from the deputy director. Meetings will have to take place with senior police officials and senior Home Office management.

16 16 Visits to suspected vice premises All visits to premises suspected to be used for prostitution are to be conducted sensitively and in a low-key manner. Any suspected sex workers are relatively more likely to be victims of modern slavery. Whether or not this is suspected, all those encountered must be allowed to preserve their dignity and given the same consideration of their privacy as any other person who is being questioned. Care must be taken to safeguard any suspected victims of modern slavery or human trafficking and it is important that their identities remain hidden. If the media are present they must be requested to obscure the identities of those present. Where a local regional police vice unit is present, they are to enter the premises first if this is their wish and Immigration Enforcement officers should not enter until given clearance. Immigration Officers must fully record all conversations with any person on the premises during the enforcement operation in their pocket notebook with details of the date, place, location and persons spoken with. Initial questioning of those identified is to be brief and succinct as it is likely the individuals will not feel safe or comfortable being questioned on the premises. They must be aware that overt personal protection equipment may have an effect on a victim s willingness to come forward where they have been coerced into vice-working. Removing potential victims away from the premises and away from anyone who may be an intimidating presence is likely to be the best way of obtaining full and frank answers to any questions and therefore, ideally, interviews should be conducted away from the premises. Questions that are directed to individuals found on vice type premises must be directly related to the investigation of the person s immigration status and / or whether they are a person who may be considered at risk. Visits accompanied by police officers On occasion, police officers are also called upon to assist Immigration Enforcement in arresting and detaining individuals living in the community who are to be removed from the UK and whose history suggests that determined or violent resistance is likely. These are particularly difficult and

17 17 sensitive operations which require careful planning in the form of a meeting with all those agencies likely to be involved, for example Immigration Enforcement representatives, local police officers, the escorts and perhaps Social Services and/or Community Liaison Officers, depending on the circumstances. Persons encountered during a visit other than the named offender During visits to private addresses and places of employment, people should be invited to answer questions about their immigration status only if there are reasonable grounds to suspect that they are immigration offenders. If the purpose of the visit is to locate a named offender, immigration officers should usually only question people on the premises to eliminate them from enquiries. In some instances, questioning will be unnecessary where it is obvious he is not the named offender, for example by his age, appearance or gender. The following are instances where it is justifiable to invite a person other than the named offender to answer questions: Where a person gives reasonable cause for suspicion that he is an immigration offender, for example: -by his behaviour (for example an attempt to conceal himself or leave hurriedly) -from his answers to questions about the whereabouts of the named offender by any documentation which he may present to identify himself and/or his immigration status in the UK -if a named offender is located at a place of employment and there is reason to believe that other employees are offenders where the employer has a history of engaging immigration offenders at private addresses, where there is reason to believe that the status of a person, for example a spouse or child, may be dependent on the status of the offender if there is reason to believe that another occupant of the premises may have harboured the offender where it is known that communal premises have been used to accommodate offenders in the past - but there must be good reason to suspect the presence of other offenders, for example from their behaviour or unwillingness to co-operate in any enquiries

18 18 Circumstances in which officers may give pursuit Only arrest trained officers may consider pursuit and only then where there are grounds to suspect that the person is an immigration offender. Officers must only pursue a person if it is intended to arrest the person under paragraph 17 of schedule 2 to the Immigration Act 1971 and only if it is reasonably safe to do so. Officers are permitted to pursue a suspect who leaves or attempts to leave the scene of an operational visit where: there are reasonable grounds to suspect the person to be an immigration offender or may be liable to removal from the UK the person has absconded having been told that they are being arrested immigration officers have been requested by a police officer to assist in their pursuit and arrest of a suspect, when assisting police officers remain under the direction of the officer in charge of the Immigration Enforcement visit. Use of arrest powers must be based on a reasonable suspicion that the person has committed, has attempted to commit, or is committing an immigration offence. An attempt to leave the premises is not in itself grounds to suspect that a person is an immigration offender. A person who is not under arrest is free to leave the premises if they wish. However, the circumstances of the encounter may give rise to a reasonable suspicion that they are an immigration offender. It is not possible to detail all circumstances that might provide a reasonable suspicion that a person is an offender. Reasonable grounds can only be provided by a general assessment of the known facts, the situation as it is known at the time and a reasonable conclusion drawn from the many possible circumstances that exist. These might include: the nature of the premises and the purpose for which it is being used the circumstances of other people located on the premises, for instance, where they are known immigration offenders

19 19 any apparent criminality detected on the premises including trafficking There may also be reasonable grounds to suspect that a person is an immigration offender based on their behaviour on being confronted by immigration officers who are clearly identifiable. Immigration Enforcement operations in public areas, crime reduction operations, ANPR and Home Office led street operations Crime reduction operations are intelligence-led operations organised by the police and are undertaken in public areas or crime hotspots targeting criminals and criminal activity, for example fare evasion, pick pocketing, bag snatching, automatic police number plate recognition (ANPR) etc. The police will always be the lead agency on a crime reduction operation and immigration officers are invited to attend where the police expect to encounter persons who may also be immigration offenders. Street operations are Immigration Enforcement led operations that target immigration offenders where intelligence has shown that they are gathered at specific locations at certain times. In every case, Immigration Enforcement will apply a set of information and prepare an intelligence profile justifying their involvement in such an operation and the decision to base themselves at a particular location. Police officers may also be in attendance (and recorded within the operational briefing), on street operations but this will depend upon their availability, authorisations, risk assessments etc. Immigration officers do not have the same powers as the police to stop individuals in public places. As regards the powers of immigration officers to question individuals in-country (as distinct from immigration control points at ports of entry), they are entitled to examine people in order to determine their immigration status in certain circumstances. The authority for this is provided by paragraph 2 of Schedule 2 to the Immigration Act 1971 as supported by the long standing judgment of Singh v Hammond, which sets out the circumstances in which the power of examination can be relied on away from the place of entry. There is a two stage process to allow an Immigration Enforcement officer to operate within a street operation, or crime reduction operation. Stage one requires there to be sufficient intelligence for an AD to authorise the operation. Stage two is then for the individual Immigration Enforcement officer to justify the questioning of a member of the public on a consensual

20 20 basis based on the individuals behaviour when they encounter an Immigration Enforcement presence. Reasonable suspicion that an individual may be an immigration offender could arise in numerous ways but an example might be where an individual attempts to avoid passing through or near a group of immigration officers who are clearly visible, wearing branded Immigration Enforcement clothing, at a location which has been targeted based on intelligence suggesting that there is a high likelihood that immigration offenders will be found there. This behaviour could not necessarily be considered to be linked to, for example, evading payment of the train fare if immigration officers are wearing body armour or other items of work wear which clearly show which agency they belong to. In such circumstances the immigration officer could legitimately stop the individual and ask consensual questions based on a reasonable suspicion that that person is an immigration offender. Immigration officers should not engage with and question all persons in an attempt to demonstrate that they are undertaking these operations in a nondiscriminatory manner. During a street operation, immigration officers should only ever seek to stop and engage with individuals in order to question them about their leave status in circumstances where the immigration officer is based in that particular location on an intelligence-led basis. This, taken together with other evidence, might amount to a reasonable suspicion that an individual is an immigration offender sufficient to question that individual on a consensual basis. Although there is no definitive list of what constitutes an adverse reaction to an immigration presence some other examples may include: hanging back from the barriers, where the individual moves in such a way as to allow others past his position for no apparent reason upon spotting the presence of immigration officers reversing direction or walking away, a sudden or unexplained change in direction and/or pace which is not running but generally quicker than they were walking, this could explain a desire to exit the area without drawing the same attention that running would. seeking to limit interaction and/or confrontation with someone perceived to be a threat Before seeking to question any person about their identity and leave status, the immigration officer must:

21 21 identify themselves both verbally and by producing their warrant card explain the reason for questioning the individual advise the person they are seeking to question that they are not obliged to answer any questions advise the person that they are not under arrest and are free to leave at any time If a person attempts to leave prior to questions being asked, the immigration officer has no power to stop that person from doing so unless there is already a sufficient basis for arrest of that individual. If a person attempts to leave whilst an examination is ongoing, the immigration officer would have to determine and record whether, in those circumstances, there were sufficient grounds to arrest the individual. The immigration officer would be unable to arrest the individual unless he was able to demonstrate that that person was liable to detention (within the meaning of paragraphs 17(1) and 16(2) of schedule 2 to the Immigration Act 1971) or had satisfied one of the relevant thresholds for criminal arrest for the offences set out at section 28A of the Act. Service of Home Office Decision in person upon reporting The Home Office may encounter a person where they report as per conditions of bail, temporary release or temporary admission. A refusal decision( based on a protection or human rights claim) may be served and the person detained on the same occasion. Where a valid postal human rights application has been made, the Home Office may chose to serve the decision in person and write a letter to the applicant, who may or may not have been subject to prior reporting conditions. The letter may state, We have considered your application and require you to attend our offices for service of our decision; Your appointment has been arranged for( date, time and venue). Please confirm by ( date) at the very latest that you will attend this appointment by completing the reply form located at the end of this notice and ing to: ADC_CLS6@homeoffice.gsi.gov.uk or UKVIDecisions@homeoffice.gsi.gov.uk. If you are late attending or fail to attend the scheduled appointment without prior agreement, this may result in further action. We will only reschedule appointments once providing there are compelling and compassionate circumstances why you cannot attend at the time and date arranged. We reserve the right

22 22 to request documentary evidence to confirm your reason for requesting an alternative appointment. A positive or negative decision may be served at such an appointment. Detention may follow where the decision is negative, in particular if no right of appeal is given or alternatively an out of country rights of appeal is indicated.

23 23 OPERATIONAL ARREST ACTIVITIES ( HOME OFFICE RAIDS) What is an operational arrest activity? An Operational arrest activity is defined as, when, in the course of official duty, a suitably trained and accredited officer is deployed with the expectation of exercising powers of arrest under Schedule 2 or Part III of the Immigration Act 1971 (as amended). In practice, this means the officer may be expected to arrest a suspected immigration offender or person liable to detention under schedule 2 and exercise the associated powers of entry, search and seizure. What is not an operational arrest activity? preparatory, reconnaissance(exploration/investigative) or pastoral visits where an arrest is not intended and will not be made visits where police officers accompany non-arrest trained Home Office officers in order to make arrests surveillance. Only officers who have successfully completed a prescribed arrest training course may undertake arrest activity. Only officers who are currently certified at Personal Safety Training (PST) Level 3 may undertake arrest activity. How Home Office staff is recognisable The majority of Home Office operations will be conducted openly. Staff should be recognisable in their official capacity. Body armour bearing Home Office logos and insignia as well as other personal protective equipment will, therefore, be fully visible. In some cases, however, a risk assessment of the proposed operation may suggest that risk may be reduced by discreet or covert deployment of personal protective equipment. The powers used Powers used differ depending on whether the officer is investigating a suspected immigration offender or seeking to arrest a known offender for removal.

24 24 Powers are provided under Schedule 2 to the 1971 Act as amended by the 1999 Act (extended also to Schedule 3) to allow immigration officers to locate, arrest and detain for removal those in respect of whom there are reasonable grounds for suspecting that removal directions may be given, pending a decision whether or not to give directions. Powers are provided under: part III of the Immigration Act 1971 (as amended) the Immigration and Asylum Act 1999, s.14 of the Asylum and Immigration, Treatment of Claimants Act 2004 (power of arrest to be exercised only by a crime and arrest trained officer working as part of an Immigration Crime Team and exercising an immigration function), and the UK Borders Act 2007 are designed to allow immigration officers to investigate immigration-related criminal offences. This will include the arrest of suspected offenders who are not subsequently charged with the offence but who are thereafter dealt with under Schedule 2 powers. There will be circumstances when it is necessary to use a degree of force to ensure the safety of officers, the target of enquiries or the public. Section 146(1) of the Immigration and Asylum Act 1999 provides officers with the power to lawfully use force in the exercise of any power conferred by the Immigration Acts, providing that the use of force is both reasonable and necessary. Drive-by reconnaissance Advance reconnaissance( exploratory/investigative) visits are not required for most operational visits. Where a large scale visit or officer safety issues have arisen in the early planning stages (serious violence or specific police intelligence), officers wherever practical may conduct a reconnaissance visit and note all the relevant information that will assist in the planning and risk assessment. Entry by informed consent The legal definition of informed consent is: 'informed consent is a person s agreement to allow something to happen after the person has been informed of all the risks involved and the alternatives. Basically, where a

25 25 person agrees to something after the person has been informed of the ramifications of giving that consent. If officers propose to search premises with the consent of a person entitled to grant entry they must, if practicable, obtain consent in writing on the Notice of Powers and Rights before the search: o officers must make any necessary enquiries to be sure the person is able to give this consent o in a lodging house or similar accommodation, officers must make every reasonable effort to obtain the consent of the tenant, lodger or occupier o in multi-occupancy premises, consent must be obtained from the occupier of each room on the premises that is entered o officers must not conduct a search solely based on the landlord s consent, a landlord cannot, as a matter of law, grant consent for third parties to enter leased premises o before seeking consent, the officer in charge of the search must state the purpose of the proposed search and its extent: o this information must be as specific as possible, particularly about the articles or people sought and the parts of the premises officers need to search o officers must clearly inform the person concerned that they are not obliged to consent and that anything seized may be produced in evidence o if at the time, the officers do not suspect the person of a criminal offence, they should say this when stating the purpose of the search o officers cannot enter and search or continue to search premises if consent is given under duress or withdrawn before the search is completed o it is unnecessary to obtain consent in writing or make enquiries as to whether the person is in a position to give the consent if this would cause disproportionate inconvenience to the person concerned - however, oral consent of the occupier must still be obtained - this is intended to apply when it is reasonable to assume that innocent occupiers would agree to, and expect, officers to take the proposed action, for example if: -a suspect has fled the scene to evade arrest and it is necessary quickly to check surrounding gardens and readily accessible places to see if the suspect is hiding -officers arrest a suspect who had initially fled and it is necessary to make a brief check of gardens along the pursuit route to see if incriminating items have been thrown away

26 26 Forced entry On occasion, it will be necessary to enter premises without the consent of the occupier. This should only be done on the authority of a chief immigration officer and by suitably trained and certified Method of Entry (MoE) officers. The premises must be secured before the team leaves. Reactive enforcement visits (hot pursuit) Where a targeted offender is not located at the address or premises visited, credible intelligence on his/her whereabouts may nevertheless be gathered. If it is considered imperative that this person is located as soon as possible, (e.g. if there is reason to believe that he/she will be informed that the new whereabouts are known to the Home Office), a chief immigration officer may authorise an immediate follow-on visit. Checks against Home Office and police record systems must be made before entering the second address. Conducting an arrest To conduct an arrest, it may be necessary to question the suspected offender to establish identity, nationality and legal basis of stay in the United Kingdom. This questioning need not be carried out under caution but officers should avoid excessive questioning and stop questioning once they have established either suspicion of an offence, or that the person is of no further interest. Having established that there are reasonable grounds to suspect a person of having committed an immigration offence, for which there is a relevant power of arrest, or of being a person liable to detention, the officer may then arrest that person. The decision to make an arrest resides with the arresting officer who is required to show that he had reasonable grounds to make the arrest and had considered any mitigating factors. This does not mean, however, that the arresting officer has to be the person restraining or escorting the arrested person. For an arrest to be lawful, the subject must be informed that they are under arrest and for what offence. The subject must also be cautioned as follows: You do not have to say anything but it may harm your defence if you do not mention, when questioned, something which you later rely on in court. Anything you do say may be given in evidence.

27 27 De-arresting at the scene Occasionally, an officer may arrest someone but subsequently discover that there are no longer grounds for the arrest. In these circumstances, they must de-arrest the subject and inform him that he is no longer under arrest, or subject to the caution, and is free to leave at any time. An example of when this may be necessary is when the subject gives no comment to any questions about his status in the UK, is arrested on suspicion of entry without leave, but a subsequent search reveals documentation that shows he has an outstanding application and is reporting regularly to a reporting centre. Dealing with other occupants and third party visitors and customers When officers' enquiries show that occupants of private or business premises are of no legitimate interest, the officer in charge should take care that these persons do not affect the overall safety of the visit, obstruct officers in their duty, or interact with suspected offenders. If an occupant, by their actions, attempts to intervene or obstruct an immigration officer from arresting a person suspected of an immigration breach or carrying out a search, the officer must consider whether it is appropriate to use their powers, under section 28A(5) of the Immigration Act 1971 for obstruction or section 23 of the UK Borders Act 2007 for assault, to arrest the person. A person is guilty of an offence if, without reasonable excuse, they obstruct an Immigration Officer or other person lawfully acting in the execution of the Immigration Act 1971 (section 26(1)(g) of the Immigration Act 1971). For example, a person deliberately stands in front of the immigration officer to prevent them speaking with an overstayer. Under section 28A(5) of the Immigration Act 1971, an immigration officer may arrest without warrant a person who: has committed, or attempted to commit, an offence under section 26(1)(g) is committing, or attempting to commit, that offence but only if either: the suspect s name and address are not known, cannot be readily discovered, or are suspected to be false or insufficient for the service of a summons